[1] Alaric Lynch [2] Charlesworth Piper Appellants v The Queen Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: ALBERT REDHEAD,Justice of Appeal [Ag.],Chief Justice [Ag.],ALBERT MATTHEW
• Judgment Date: 11 November 1996
• Judgment citation (vLex): [1996] ECSC J1111-2
• Docket Number: CRIM. APP. NOS.4 & 5 OF 1996
• Date: 11 November 1996

[1996] ECSC J1111-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. G.M. Dennis Byron Chief Justice [Ag.]

The Hon. Mr. Albert Redhead Justice of Appeal [Ag.]

The Hon. Mr. Albert Matthew Justice of Appeal [Ag.]

CRIM. APP. NOS.4 & 5 OF 1996

Between:

[1] Alaric Lynch

[2] Charlesworth Piper

Appellants

and

The Queen

Respondent

Appearances:

Mr. Hogarth Sergent for No.1 Appellant

Mr. David Brandt for No.2 Appellant

REDHEAD, J.A. [AG.]

1 The Appellants, Alaric Lynch and Charlesworth Piper were convicted on 16^th July, 1976 on an indictment before Smith J and a jury of the offence of attempted murder. They were sentenced to seven years and ten years imprisonment respectively. They now appeal against their convictions.

2 The indictment on which the Appellants were convicted contained four counts. The first and second counts charged them for attempted murder of Anna Ryan and Koya Ryan respectively.

3 The third count charged the Appellant Piper for the offence of unlawfully discharging a firearm at Koya Ryan and the fourth count charged the Appellant Lynch for the offence of unlawfully discharging afirearm at Anna Ryan. In relation to counts three and four of the indictment the jury returned a verdict of not guilty, in respect of both Appellants.

4 The case against the Appellants as put forward by the prosecution is that at about 7:00 pm on 15^th October, l995 the Appellant Piper summoned Bertrand Hixon by telephone. Bertrand Hixon arrived shortly thereafter at Pipers home. Piper instructed him to go and look for@ Lynch. Hixon dutifully complied and went to Lynch's home. He called out to Lynch and told him, "Piper send me for you". Lynch got into Hixon's car and they later drove to Piper's home.

5 On their way to Pipers home, Lynch had stopped, got out of the car and brought back a black knapsack which he put in the car. On arriving at Pipers home, Piper got into the car and all three of them drove around town for a while. Hixon then drove to Piper's home. Piper left the car and returned with a black travelling bag which he too put in Hixon's car.

6 Piper then instructed Hixon to drive to Cork Hill. Hixon obliged. He drove over to Cork Hill by some friends. After staying there for a while, Piper told them, "let us go back to town." Hixon drove back to town with all three in the car. They drove around town again for a while.

7 Hixon then told the two Appellants that he was going because he was tired. Piper told Hixon to go to his, Piper's, house. Hixon drove to Pipers house. He parked his car and Piper got out of the car and went to his car, which was parked nearby. Lynch remained in Hixon's car.

8 Hixon fell asleep and when he woke up it was 1.20 am, by the clock in his car. Hixon got out of his car and went to Piper's car and knocked on the window. Hixon told Piper he was going home. Piper told Hixon to hold on and drop them off "on a move."

9 Hixon again dutifully obliged. He drove his car with the Appellants up George Street unto Hospital Road. When they were on the Hospital Road, Piper told Hixon to wind up the window of the car. The car windows were tinted black. Piper then told him to make the first right and the last right turn from the Hospital Road. Hixon did as he was told. Piper then told him to stop. Piper and Lynch got out of the car and they both took their bags with them. Hixon drove off and left them.

10 On the morning of 16^th September, 1995 at about 2.00 am, Anna Ryan was awake. She was lying on a couch in the living room of her house. Her daughter Koya aged 10 years old, was asleep in a middle bedroom of the house.

11 While Anna Ryan was lying on the couch, she heard explosions and the sound of falling glass. Three explosions came in rapid succession. Koya was at the window screaming. The windows are made of glass louvers. Anna Ryan then crept on her stomach backwards into Koya's bedroom. She then closed the door of Koya's bedroom because the light was on and one was able to see into that room from a window. When she got into Koya's bedroom, Koya was standing on her bed screaming. Koya then lay down on her bed. Anna Ryan lay on the floor next to koya's bed. They held hands and prayed quietly.

12 About half hour later Anna Ryan heard movements in the grass just outside the window of Koya's bedroom. She also heard male voices speaking in whispered tones. After a while the persons left.

13 At day light Anna Ryan observed that there were marks like bullet holes in Koya's bedroom, on the wall. There were also holes in the curtain and marks on the roof of the bedroom. Anna Ryan also observed holes in the aluminum louvers in Koya's bedroom. There was debris from the wall and fragment of bullets and pieces of aluminum from windows scattered on the ground and on the bed. In the living room parts of glass of the louvers in the windows were broken.

14 On the wall, which was about one foot from the couch where Anna Ryan was, there were holes in the concrete like bullet marks.

15 When Koya was standing on her bed, Koya's head was directly in the path of all the bullets that came into the room at that time, that is, the bullet holes coincided with Koya's height.

16 The following day on 17^th October, 1995, the Appellant Lynch, took Sergeant Rueben Meade, Inspector Shotte and Corporal Barzey to an area, seventy-five feet from Piper's home and pointed to a spot where a search was made, a black garbage bag was found. In the bag was found a revolver, a shot-gun containing 11 shot-gun shells. Eleven .38 shells, forty-four .22 bullets and a .22 blank.

17 The defence of the Appellants was that of an Alibi. They admitted being taken by Hixon in his motor-car and being dropped off at the entrance to Hospital Road on the way to Webbs. That they then walked to Webb's to Sean West's house, where there was a sound system.They stayed there until about minutes to 4.00 am. They left and they went to their respective homes.

18 Lynch denied taking the police anywhere and pointing out any spot to them where the guns were found. Rather, according to Lynch, about 5.00 am on 17^th October, 1995, the police took him to a foot-path in Fort Ghaut and showed him where he, the police, removed from some bushes a black plastic bag, with two fire-arms and a sack, and asked him if he knew anything about them. He told him he knew nothing about them. Both appellants denied any knowledge of the guns and of the shooting.

19 Eight additional grounds of appeal were filed on behalf of the first-named Appellant. The additional grounds of appeal incorporate his original two grounds of appeal.

20 The additional grounds of appeal filed on behalf of first-named Appellant are as follows:

"3. The Learned Trial Judge failed to direct the jury on the question of intent on a charge of attempted murder.

"4. The Learned Trial Judge failed to direct the jury adequately on circumstantial evidence.

"5. The Learned Trial Judge was wrong to tell the jury that he had ruled there is a case to answer after a no case submission was made.

"6. The Learned Trial Judge was wrong to tell the jury that they would have felt sure of the Appellant's whereabouts if he had brought his witnesses.

"7. The evidence cannot support the verdict.

"8. The Learned Trial Judge failed to direct the jury on common design or to show any common design to the evidence.

"9. The Learned Trial Judge failed to put the defence of the accused [sic] properly before the jury.

"10. The Learned Trial Judge was wrong to direct the jury that the discrepancy of the bullets were [sic] a red-herring by the defence.

21 Ground three of the additional grounds of appeal and ground one of the original grounds of appeal are identical. So are also ground nine of the additional grounds of appeal and ground two of the original grounds of appeal.

22 Grounds eight and nine of the additional ground of appeal were not argued.

23 The two original grounds of appeal filed on behalf of the second-named Appellant were also subsumed in the additional grounds filed on his behalf.

24 The additional grounds of appeal filed on behalf of the second-named Appellant are substantially the same as those of the first-named Appellant. The grounds of appeal filed on behalf of the second-named Appellant are:

• 1. The Learned Trial Judge failed to direct the jury either at all or adequately on the specific intent which was required in the cases of attempted murder.

• 2. The Learned Trial Judge failed to put the case of the Appellant adequately to the jury.

• 3. The Learned Trial Judge failed to direct the jury adequately or at all what were the legal requirements of an attempted murder and failed to relate that definition to the facts of the case.

• 4. The Learned Trial Judge failed to direct the jury adequately or at all on what are the legal requirements of a joint enterprise and how that definition is related to the facts of the case.

• 5. The Learned Trial Judge erred when he informed the Appellant Charlesworth Piper in the presence of the jury that he had a case to answer.

• 6. The Learned Trial Judge erred when he directed the jury that if the Appellant brought a witness, they would of [sic] felt sure that he was where he said he was "but we don't have Shawn West or anybody else to say where they were."

• 7. By giving this direction he mislead [sic] the jury into thinking inter alia that the Appellant must prove that he was innocent.

25 The warning he gave the jury afterwards did not cure this defect.

26 Mr. Sergeant, Learned Counsel for the first-named Appellant argued that the Learned Trial Judge failed in his directions to the jury to tell them what constitutes attempt and that even if he did so, he must go on to show what evidence there is to support that attempt.

27 Mr. Sergeant argued that a direction on an intention to kill would be sufficient direction but in the instant case an extended direction was required. Mr. Brandt...